Divorce Involving Spouses with Special Needs

Although divorce is never easy, a divorce involving a spouse with special needs has its own set of emotional and financial complexities. In these divorces, the court’s top priority is to make sure the disabled person can get the care they need after divorce. 

While a special needs spouse may already receive government benefits to help with the cost of their care, when they lose their spouse’s physical and financial support through divorce, they may need additional outside services and financial assistance. Often, the court will decide that some of that assistance must come from the non-disabled ex-spouse. 

What are the “marriage penalties” for married people with special needs?

Many special needs individuals rely on government assistance to help them get the physical and financial care they need to go about their daily lives. These government programs provide help with medical care, housing, meals, transportation, and home care. But when disabled adults decide to marry, they can get penalized by the very government programs they rely on. 

Some programs offered by the federal government are “needs-based” and only available to those with a proven financial need. When a special needs individual gets married, the government uses the combined income and assets of the married couple when qualifying the disabled individual for benefits. Hence, this can significantly reduce or even remove their eligibility for benefits. 

Those who have collected Social Security Disability Insurance (SSDI) under their parents’ work record, or Disabled Adult Child (DAC) benefits, will immediately lose their benefits when they marry. Other benefits, such as Supplemental Security Income (SSI) and Medicaid, may be reduced or lost entirely. 

A special needs consideration for marriage and divorce

The loss of government benefits in marriage can be an important consideration when disabled individuals decide to marry. Some decide that marriage isn’t worth the loss of benefits, and some marry anyway, understanding that it will affect their government benefits. 

And, while dealing with marital penalties may have been a conscious decision before marrying, if the couple decides to divorce, the special needs spouse will have to re-qualify for the benefits they lost. 

Some states, such as California, are trying to reduce the inequalities presented by these marriage penalties by introducing legislation to make these laws fairer for special needs individuals.

How can divorcing people with special needs get benefits?

For individuals with a disability, divorce can present many challenges. An individual who has relied on their spouse for financial support and physical care must now face the possibility that they won’t be able to care for themselves after the divorce. This makes disability and other government benefits essential. 

Depending on the disability and the financial situation of the divorcing couple, benefits available to a disabled spouse may include the following:

  • An individually purchased or employer-provided disability insurance policy
  • Social Security Disability Insurance (SSDI) 
  • Supplemental Security Insurance (SSI)
  • VA disability benefits
  • Social Security retirement benefits 
  • Medicare 
  • Medicaid

Special needs individuals applying for federal assistance programs will need to meet eligibility requirements and apply for these benefits through the government. If the special needs spouse already gets government benefits, the divorce settlement should be structured so the individual retains these critical benefits. They will also need to report their divorce to Social Security, as some benefits may change. 

Will I have to pay permanent spousal support to my disabled ex?

Even when benefits are available to a special needs spouse, they are often not enough. The court may look to the non-disabled spouse to make sure the special needs spouse has the resources they need to be adequately provided for. 

If you seek a divorce from a spouse with disabilities, the court may still call on you for financial or healthcare assistance. If your spouse cannot work and provide for themselves, chances are you will be required to pay spousal support to help pay for your ex’s care. Depending on the disability, your ex-spouse’s needs, your financial resources, and the financial terms of your divorce, you may even be looking at paying permanent spousal support to your ex. 

Spousal support and divided marital property are considered unearned income when qualifying for needs-based government benefits. This can prevent your special needs spouse from getting some benefits. Financial tools such as a special needs trust can shield these assets and support funds so they can’t be considered in the eligibility process for federal benefits. 

How can I establish guardianship or conservatorship for my disabled soon-to-be ex?

If your spouse suffers an incapacity that severely limits their ability to make decisions and take care of themselves, a guardianship or conservatorship may be considered to help manage their affairs. Generally, the standard for guardianship or conservatorship is the incapacity of the disabled spouse. The court will appoint a guardian or conservator to ensure that your spouse has continued legal, financial, and health-related care as well as representation and advocacy. 

Depending on the state and type of guardianship or conservatorship, the conservator or guardian will manage the personal care, financial care, or both of the incapacitated spouse. For disabled spouses who are still able to make some important decisions for themselves, limited conservatorships may be appropriate. 

In long-term marriages where one spouse becomes incapacitated, a non-disabled spouse may decide to establish a conservatorship instead of filing for divorce. This keeps community property intact for the couple’s heirs while providing the care the incapacitated spouse needs. In these cases, it’s important to get guidance from a legal professional who understands how estate laws and family laws intersect in a special needs divorce. 

Who can help us get divorced?

Divorcing a special needs spouse can be complicated with many legal and ethical considerations. A divorcing couple and their family should understand all available options to make sure the special needs individual gets the care and services they need. 

At Hello Divorce, we offer legal services and experienced guidance to help you make serious decisions about your divorce. You can schedule a free 15-minute phone consultation to learn more about what we offer.

Divorce Content Specialist
Mediation, Divorce Strategy, Divorce Process, Mental Health
Candice is a former paralegal and has spent the last 16 years in the digital landscape, writing website content, blog posts, and articles for the legal industry. Now, at Hello Divorce, she is helping demystify the complex legal and emotional world of divorce. Away from the keyboard, she’s a devoted wife, mom, and grandmother to two awesome granddaughters who are already forces to be reckoned with. Based in Florida, she’s an avid traveler, painter, ceramic artist, and self-avowed bookish nerd.